Henley v. Warden, USP Coleman 1

Filing 6

ORDER dismissing the case without prejudice; directions to the Clerk. Signed by Judge Brian J. Davis on 6/8/2020. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
TROY HENLEY,
Petitioner,
v.

Case No:

5:20-cv-251-Oc-39PRL

WARDEN, FCC COLEMEN – USP I,
Respondent.
___________________________________
ORDER OF DISMISSAL WITHOUT PREJUDICE
Petitioner, an inmate of the federal correctional system
proceeding pro se, initiated this case by filing a Petition for
Writ of Habeas Corpus Under 28 U.S.C. § 2241 in the United States
District Court for the Middle District of Florida, Orlando Division
(Doc. 1; Pet.).1 The Orlando Division transferred the case to this
Court

because

Petitioner

is

confined

at

Coleman

Federal

Correctional Complex, which is in this division. See Order (Doc.
2).
Petitioner challenges his 2008 conviction and sentence out of
the District of Maryland. See Pet. at 2. Petitioner contends he
has sought collateral review of his 2008 conviction twice under 28
U.S.C. § 2255. See Pet. at 3-4. His original petition was denied
in 2012. Id. at 3. Petitioner thereafter received permission to

Petitioner did not file his petition using the Courtapproved form, but Petitioner provides enough information for the
Court to assess the viability of his claims.
1

file a second or successive petition, which was denied last year.
Id. at 4. He now seeks to invoke 2255’s saving clause to attack
the same conviction under § 2241. Id. at 4-5. Petitioner asserts
a remedy under § 2255 is inadequate or ineffective because the
Supreme Court has recently held unconstitutional 18 U.S.C. §
924(c)(3)(B), under which Petitioner contends his sentence was
enhanced for having committed a “crime of violence.”2 Id. at 1, 6
(citing United States v. Davis, 139 S. Ct. 2319, 2336 (2019)). As
relief, Petitioner requests the Court void two counts of his
conviction and sentence. Id. at 7.
A motion to vacate under 28 U.S.C. § 2255 is the “exclusive
mechanism for a federal prisoner to seek collateral relief unless
he can satisfy the ‘saving clause.’” McCarthan v. Dir. of Goodwill
Indus.-Suncoast, Inc., 851 F.3d 1076, 1079, 1081 (11th Cir.)
(“Congress gives a federal prisoner one opportunity to move to
vacate his sentence.”). The saving clause is triggered only when
a prisoner’s remedy under § 2255 is “inadequate or ineffective to
test the legality of his detention.” See § 2255(e). The Eleventh
Circuit now makes clear that only under limited circumstances does
§ 2255’s saving clause allow a federal prisoner to seek relief
under § 2241. McCarthan, 851 F.3d at 1090. The saving clause
applies only under three narrow circumstances:

The Court accepts Petitioner’s assertions as true for
purposes of this Order.
2

2

(1) when raising claims challenging the
execution of the sentence, such as the
deprivation of good-time credits or parole
determinations; (2) when the sentencing court
is unavailable, such as when the sentencing
court itself has been dissolved; or (3) when
practical considerations, such as multiple
sentencing courts, might prevent a petitioner
from filing a motion to vacate.
Bernard v. FCC Coleman Warden, 686 F. App’x 730, 730-31 (11th Cir.
2017) (citing McCarthan, 851 F.3d at 1092-93).
Accordingly, if a petitioner could have brought his claims in
a § 2255 motion, even if those claims would have been foreclosed
by

binding

precedent,

the

remedy

is

adequate

and

effective.

McCarthan, 851 F.3d at 1086, 1090 (holding petitioner’s remedy
under § 2255 was “adequate and effective to test the legality of
his

detention”

because

he

filed

a

petition

challenging

his

sentence, which “he could have brought in a motion to vacate”).
A federal prisoner may not invoke the saving clause to
challenge his conviction based on an intervening change in the
law. Id. at 1085. Indeed, in McCarthan, that was precisely what
the petitioner sought to do, and the Eleventh Circuit held, “a
change in caselaw does not trigger relief under the saving clause.”
Id. See also Nipper v. Warden, FCC Coleman-Medium, 688 F. App’x
851, 852 (11th Cir. 2017) (“The saving[] clause does not apply to
claims based on new rules of constitutional law.”). When an
intervening change in the law makes a prior conviction invalid,
and the prisoner has already collaterally attacked his conviction
3

under § 2255, the proper course is to seek permission to file a
second or successive petition under § 2255(h)(2). Id.
Petitioner is not entitled to proceed under § 2241 because
the limited circumstances under which § 2255’s saving clause
applies are not present here. For example, Petitioner does not
challenge the execution of his sentence, he does not assert the
sentencing court is unavailable, and his sentence was not imposed
by multiple courts. See Bernard, 686 F. App’x at 730-31. Instead,
Petitioner argues a change in the law permits him to advance a
claim for relief that was previously unavailable to him. If such
is the case, Petitioner should move to file a second or successive
petition under § 2255 in the appropriate court.3 See Strouse v.
Warden, USP Coleman II, 777 F. App’x 468, 468 (11th Cir. 2019) (“A
prisoner cannot utilize the saving clause as a means to circumvent
. . . ‘the process for obtaining permission to file a second or
successive’ § 2255 motion.”) (citing McCarthan, 851 F.3d at 1091).
Accordingly, it is
ORDERED:
1.

This case is DISMISSED without prejudice.

2.

The Clerk of Court shall enter judgment dismissing this

case without prejudice, terminate any pending motions, and close
this case.

The Court does not hypothesize whether such a motion would
succeed.
3

4

DONE AND ORDERED at Jacksonville, Florida, this 8th day of
June 2020.

Jax-6
c:
Troy Henley

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